All posts by Richard Kirstein

The New Year brought the tragic news of the passing of David Bowie. The term genius is often attributed to artists, though not all deserve it. David Bowie was a true genius and more.

Completely unique, forever surprising with a rare ability at multiple reinvention throughout his career. Bowie was responsible for some of the greatest music of the last 50 years and will continue to inspire artists and fans for the next 50.

His death has, of course, prompted a resurgence in sales of his back catalogue – to be re-discovered by new generations who weren’t previously familiar with his work but feel his influence through contemporary artists. Bowie was also a master of collaboration – one of my favourites being “Fame” co-written with John Lennon & Carlos Alomar. Here’s a 1975 clip of Bowie performing “Fame” live, in which his styling looks strangely modern.

Why is this relevant to Marketing?

There’s a common misconception among some marketers that the death of an artist makes their work freely available for use in brand campaigns. This is, of course, wholly incorrect and ignores the complex rules surrounding life of copyright in songs and sound recordings. This becomes more complicated for work where the artist and songwriter is the same person – such as David Bowie.

What’s Life Of Copyright?

As I explain in my new book Music Rights Without Fights, both songs and sound recordings have extensive periods of copyright protection during which time the rights owners have exclusive control of the work. This control includes the ability to grant (or withhold) licences for the work to be used in association with brand marketing campaigns and charge an appropriate licence fee.

What’s The Length of Life Of Copyright?

Here’s where it gets complicated – This varies by market and differs between songs and recordings. Taking the European Union (“EU”) as an example, Life of Copyright is:

For Songs & Compositions:

70 years from the end of the year in which the songwriter or composer died. Where the work has multiple creators, it’s 70 years from the year in which the last creator died.

For Sound Recordings:

70 years from the end of the year in which the sound recording was first commercially released.

What’s The Term For Music Beyond Life Of Copyright?

The common terms are “Out Of Copyright” or “Public Domain”.

So, I Can Use Anything From 1945 And Before For Free, Right?

No, wrong. It’s not that simple.

For songs, in theory, within the EU, any song written by a songwriter who died in 1945 or before is out of copyright – and hence could be used by a brand in an advertising campaign without payment of a licence fee. However, in practice copyright law allows new arrangements of out-of-copyright songs to be registered as new in-copyright works.

If your brand or agency commissions a new arrangement (or sources an existing recording) of an out of copyright song, chances are, the arrangement will have been registered as a new work which requires the usual licensing process and applicable fee.

For sound recordings, there’s a legal view that a new copyright exists in remastered versions of old recordings. If, for example, you have a CD version of a 1945 recording, the record company that remastered and released it could claim copyright in that CD recording. The only safe option is to source an original shellac 78 rpm disc from the period.

A Word Of Warning

The above guidance, whilst always subject to detailed due diligence, roughly applies to campaigns limited to EU states. However, where campaigns are made available online, other market jurisdictions come into play where rules differ.

For example, life of copyright in sound recordings in the USA is 95 years – so, only sound recordings commercially released in 1920 or before would be public domain. Likewise, life of copyright in songs varies across regions so non-geo locked online campaigns have high risks attached for those who rely on public domain status to avoid licence fees.

What Does This Mean For Procurement?

If your marketing colleagues say they’re using out of copyright music in a brand campaign, and therefore have no music line item in the production budget, alarm bells should ring. It’s rarely that simple and the cost of getting it wrong through copyright infringement far exceeds the payment of licence fees handled in the correct manner.

What Can I Do To Be Safe?

Here’s a quick check list once your marketing colleagues have told you which music they plan to use:

For Songs – you need clarity via detailed due diligence by a qualified expert on:

Death dates of songwriter / composer / lyricist

Identity of previous copyright owner (if work is assumed to be public domain)

Summary of markets in which the campaign is due to run

Cross-check against copyright legislation in those markets

Copyrights status of new or existing arrangement of the work intended for use

For Recordings – you need clarity via detailed due diligence by a qualified expert on:

Date of first commercial release in the markets in which campaign will run

Cross-check against copyright legislation in those markets

Identity of previous copyright owner (if recording is assumed to be public domain)

Availability of original shellac 78rpm disc that pre-dates copyright period

Want To Know More? Enter Competition To Win Free Book!

If you’d like to know more about music rights and how to license them with controlled cost and risk, we’re giving away 10 free copies of my book Music Rights Without Fights to Procurious members.

To be in with a chance of winning, follow the link below and answer all the questions there. In the event of there being more than 10 entrants who answer the first 5 questions correctly, we’ll use our fiendishly difficult tie break question to help select the winners.

The competition closes at 17:00 (GMT) on Friday the 5th of February, with winners announced the following week. You must be a member of Procurious to be eligible for the competition!

The well-orchestrated PR ‘rumours’ were confirmed when John Lewis’ Christmas campaign was launched, sound-tracked by a cover of a classic song – “Half The World Away”, written by Noel Gallagher of Oasis.

On cue, industry pundits considered if the brand’s longstanding music strategy still works, or if consumers will tire of slow, breathy female-vocal renditions of songs whose original versions had more bite. Retail analysts will no doubt pore over John Lewis’ Christmas trading figures in the New Year; this may provide an answer.

The Cost of Music

For the Procurious community, the key issue here is ROI. Will investment in the campaign, of which music is a key part, deliver a quantifiable uplift in profits? It’s a question I’ve asked marketing directors when considering the cost of music recommended by their agencies.

In advance, it’s almost impossible to know – and in hindsight, few brands carry out the post mortem. If you’re in marketing procurement with a remit to support your marketing colleagues, where do you begin?

At a presentation to ISBA members earlier in the year, it was clear that many marketing procurement executives didn’t feel confident to challenge their agencies on music costs. A common concern was:

“I just don’t know which questions to ask”.

Typically agencies present a single figure for music in production estimates with no breakdown or explanation of how the deal was negotiated. Without an understanding of the fragmented nature of music rights, marketing procurement teams are in the dark. So, here’s some light on the issue:

Separate copyright exists in

The song aka “publishing rights”, and

The sound recording aka “master rights”.

These are usually controlled by respectively by music publishers and record labels. Brands, or their agencies, are solely responsible for securing approvals and negotiating sync licence fees before any usage takes place in a campaign.

Jargon Alert!

‘Sync’ (short for synchronisation) is the act of dubbing music to moving images.

The sync licence approval chain often leads back to the same people when the songwriter and artist is the same person. Had John Lewis wanted to use the original Oasis recording of “Half The World Away”, the sync licence requests would have been as follows:

In this instance, Noel Gallagher would receive the sync requests via two avenues, his music publisher and record label.

Value Versus Price

Here’s where value and price come in. Would Noel Gallagher place a greater value on his song or his recording?

In practice, the music industry prices them at parity using Most Favoured Nations (“MFN”) – an upwards-only price equalisation device. “Half The World Away” reached number 3 in the UK single charts in 1994 and became the theme song for BBC sitcom “The Royle Family”. Mr Gallagher would therefore place a very high value on both song and recording.

However, the new John Lewis campaign doesn’t use the original Oasis version. Instead, it follows the established strategy of using an emerging artist to record a new cover version of the song. In this instance it’s a Norwegian singer called Aurora, signed to Universal Music imprint Decca Records. So how does the approval chain look now? The song remains the same, but the recording is different.

As we’ve discussed, Noel Gallagher will place significant value on this song. His managers will dictate that his music publisher demands a premium price for the sync licence. Remember that Mr Gallagher didn’t write his song to be used in a commercial, and he doesn’t need the money or profile.

In contrast, the artist Aurora will greatly benefit from the exposure in the John Lewis campaign. For the artist, her manager, and her record label, the value is in the promotional opportunity, not the sound recording. This will be reflected in a much lower-priced sync licence, provided that the record label waives any MFN provision.

Key Learnings

If your agency presents you with a single budget figure for a licensed music track, don’t just accept it, ask these questions:

Is it an original artist recording or a cover?

If it’s an original artist recording, is the artist also the songwriter?

Is the artist proven to be famous?

Is the song or songwriter proven to be famous?

Which music publisher controls the song? (It can be more than one)

If the recording is a cover, is the cover artist famous?

How will the cover artist benefit from awareness through the campaign?

Can promotional value be traded against sync licence price?

Will the record company who controls the cover recording waive MFN?

Whilst these issues are a whole world away from the schmaltzy, perfect Christmas conveyed in the new John Lewis campaign, smart marketing procurement executives can take control of price by better understanding value and the complex music rights landscape.

Although the song remains the same, alternative cover versions can offer cost efficiencies if you know the right questions to ask.

Richard Kirstein is a Founding Partner at Resilient Music, which aims to shed light on the complex landscape of music procurement, and delivers a smarter way for brands and agencies to buy music talent and rights.